The Courts, the Constitution and the Federalist papers

Foxfyre wrote:

Well I disagree Goodfielder and I will not participate in making this a partisan issue or just another Republican bashing thread. But you have a good day.

Fair enough but Foxfyre don't spit the dummy just because I happen to point out reality. If it was the Democrats pulling these stunts I'm sure you'd be in it up to your eyes. Time to remove the wool I think. Take a good clear look, try to stand back from any partisan political position and see what's happening. It's not a good look and all the fine rhetoric won't change it.

As someone said, you can put lipstick on a pig but it's till a pig. A power grab by the Left or the Right is still a power grab. How to control the courts is the first subject in Dictatorship 101.

Think about it, seriously, think about it. There can be fine words and rarified debates and you can retire hurt because I dared to introduce criticism of the Republicans but in the real word Foxfyre, in the real world it's all happening.

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Foxfyre
Foxfyre wrote: "The idea that it is the courts that utilize any fluidity built into the Constitution is precisely what many of us object to, however. The courts are not representative of the people and I think the Federalists and the Constitution intended that it be the representatives of the people who make the laws consistent with changing culture bit with the checks and balances of the executive veto and judicial jurisprudence to be sure that our elected legislators do not run amuck. If the courts take on the responsibility of deciding what is and is not to be the law, what recourse do the people then have short of the lengthy and debilitating process of impeachment and, short of malfeasance, even that option isn't really available to us."

This is an amazing statement. It seems to demonstrate that you prefer judges to validate your opinions re any subject rather than do the job assigned to them in the Constitution.

I've been studying constitutional law and supreme court cases for the last year with a highly respected expert (in addition to my law studies a few decades ago.) I've read hundreds of the most important cases that have shaped our judicial system. The only cases of "judicial activism" as you define it, have been those later reversed because they were bad decisions that violated the constitution. Most of them denied equal protection of the law, etc.

It is not the responsibility of judges to support your social opinions---nor my social opinions.

My respect for our judiciary increased when, in Florida, it stood up to the intense political and social pressures in the Schiavo case. Florida has one of the best constitutions in the country. Florida's judges made up---a little bit---for the astonishing judicial activism of the supreme court majority in Bush vs Gore. The supreme court majority knew it was violating it's authority as evidenced by their loophole provision that their decision applied only to that case and not set precedent. That is a blatant case of judical activism---which you appear to approve of. I guess in your opinion, it depends on whose partisan ox is being gored.

BBB

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Foxfyre wrote:

Quote:

The courts are not representative of the people and I think the Federalists and the Constitution intended that it be the representatives of the people who make the laws consistent with changing culture biut with the checks and balances of the executive veto and judicial jurisprudence to be sure that our elected legislators do not run amuck.

Fox, you are missing the point again that was expressed in Fed 78. The Constitution expresses the will of the people. It is the courts that defend that will against the Legislature and the Executive. If you don't like the court rulings then the way to change it is to amend the constitution. It is the courts that represent the people MORE than the legislature or the executive branch because the courts are the check on tyranny from the other 2. As Fed 78 points out, the courts can't be guilty of any tyranny on their own.

From Fed 78

Quote:

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

Quote:

Though I trust the friends of the proposed Constitution will never concur with its enemies, in questioning that fundamental principle of republican government, which admits the right of the people to alter or abolish the established Constitution, whenever they find it inconsistent with their happiness, yet it is not to be inferred from this principle, that the representatives of the people, whenever a momentary inclination happens to lay hold of a majority of their constituents, incompatible with the provisions in the existing Constitution, would, on that account, be justifiable in a violation of those provisions; or that the courts would be under a greater obligation to connive at infractions in this shape, than when they had proceeded wholly from the cabals of the representative body. Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge, of their sentiments, can warrant their representatives in a departure from it, prior to such an act. But it is easy to see, that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice of the community.

Fox, You can disagree with the ruling but the constitution which is the will of the people gives the courts sole power to make that ruling. The only recourse of the people is to amend the constitution and remove such power from the courts or change the constitution to make it clear to the courts.

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John Marshall
We have John Marshall, the most important justice of the supreme court, to thank for the independence of the judiciary. The following is a short summary of why his action was so important:

Chief Justice of the United States

President Adams made a number of "midnight" appointments just as his presidency was ending. He appointed forty two persons to be justices of the peace for the Counties of Washington and Alexandria in the District of Columbia. The Federalist Senate confirmed them, and the commissions were signed, sealed, but not delivered.

After Jefferson was inaugurated he directed Madison, as Secretary of State, to issue commissions to twenty-five of the persons appointed by Adams, but to withhold the commissions from the other seventeen. Among the latter was William Marbury, Robert Townsend Hooe, Dennis Ramsay, and William Harper.

These men applied to the Supreme Court for a writ of mandamus compelling Madison to deliver their commissions. The suit, MARBURY v. MADISON (1803), became a land mark case establishing the practice of JUDICIAL REVIEW by federal courts over acts of the other two branches of government.

The federal courts were under a sustained and determined attack by President Jefferson and the Republican Party who wished to bring the courts under the domination of the executive branch.

Marshall's opinion in Marbury v. Madison showed his intellectual and moral force and foreshadowed the views he would express in later decisions. Throughout his tenure with the court he was deeply concerned with preserving private property rights, the enhancement of the prestige and power of the court, and the establishment of a strong, central, federal power.

After becoming Chief Justice Marshall was asked by the nephew of George Washington, Bushrod Washington (an Associate Justice of the Court), to write the official biography. This was a task that Marshall was unprepared to do, having no knowledge of the difficulties in researching and writing a biography, but he needed the financial return that was expected.

Several years before he had purchased the Fairfax estate and still owed a great deal to the present heir. The five volume biography took over four years to write and met with a very mixed and critical reception. Thomas Jefferson was incensed and called it a "five-volume libel" and a "party diatribe." (There is perhaps some justification in Mr. Jefferson's perturbation. Only two pages are given to the writing of the Declaration of Independence and a footnote credits its author, "...the draft reported by the committee has been generally attributed to Mr. Jefferson." Jefferson published his "Anas" chiefly as a reply to Marshall. Never satisfied with the first edition, Marshall spent almost twenty years in revising it.

The story of the trial of Aaron Burr for treason is replete with intrigue, abusive use of executive power by Jefferson, and an attempt to keep the court from hearing the case by suspending the privilege of habeas corpus.

Senator Giles, Jefferson's personal representative in the Senate, got the measure passed along with an unheard of special, confidential message to the House requesting passage of the bill without delay. The Senate bill provided that "in all cases, where any person or persons, charged on oath with treason, misprision of treason, or other high crime or misdemeanor...shall be arrested or imprisoned...the privilege of the writ of habeas corpus shall be...suspended, for and during the term of three months."

The House was astounded and Representative Thompson of Virginia moved the "message and the bill received from the Senate ought not to be kept secret and that the doors be opened." His motion was adopted by 123 yeas and 3 nays. A motion was made to reject the Senate bill and after a short, angry exchange by various factions, the motion was passed 113 yeas to 19 nays.

This left the way open for Marshall to consider whether or not the trial belonged within the jurisdiction of the Supreme Court. Marshall did find that the Supreme Court was the proper jurisdiction and the trial was held. His opinion destroyed the law of "constructive treason."

Treason is the only crime specifically defined in the Constitution, leaving the defining of all others to Congress. Furthermore, the Constitution prescribes exactly how treason must be proved. Aaron Burr's guilt or innocence is still debated today. The trial and Marshall's opinion are still as fascinating as ever.

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Parados quotes

Quote:

But it is easy to see, that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice of the community

No Parados, respectfully I don't think I am missing the point. It seems clear to me that in both the language of the Federalist opinion and the Constitution itself, it is not the prerogative of the court to write opinion based on what they think the Constiution should have inferred rather than on what the law actually is. The duty of the court is to overrule unconstitutional legislation, not to presume the powers of the legislative process. In the examples cited thus far, it is easy to see how many think the courts are assuming powers assigned to the legislative and executive branches before such issues are ever addressed by the legislative and executive branches

Example: on what principle of constitutional interpretation did the court declare execution of minors tried and ocnvicted as adults to be unconstitutional?

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Ok,

Time for everyone to take a deep breath and go read Federalist 78 and maybe even Fed 78-82. The purpose here is to not attack each other here but discuss the opinions expressed and hopefully in a pleasant manner.

Fox wrote:

Quote:

If the courts take on the responsibility of deciding what is and is not to be the law, what recourse do the people then have short of the lengthy and debilitating process of impeachment and, short of malfeasance, even that option isn't really available to us.

As I said in my earlier post, the process the people have is amendment not impeachment. Fed 78 argues strongly for an independent judiciary that is not subject to being removed because we disagree with their rulings. The history at the time was that Kings could remove judges at will. Fed 78 argues strongly against that.

Let me attempt to distill the argument down to its basic components.
The Constitution is the will of the people.
The Courts are there to defend that constitution and will of the people from all encroachments.
The Courts are given this power in the Constitution.
The Courts have the SOLE power to decide meaning in the constitution.
The Constitution says the will of the people can be changed by amending the constitution.
At times the legislature may appear to have a majority opinion with them that violates the constitution.
At those times, it is STILL the job of the court to defend the constitution because it is STILL the will of the people until it is amended.
It is not "bad behaviour" for Courts to do their job.

Fox, we can disagree with court decisions but we have a way to change it based on the constitution.

For everyone -
Please let me know which of the above facts I expressed in my list of components you might disagree with. I think we are closer than some in here think. It comes down to ironing out the details to come to a consensus.

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Quote:

Example: on what principle of constitutional interpretation did the court declare execution of minors tried and ocnvicted as adults to be unconstitutional?

It's in the decision. Which part of the decision don't you agree with Foxfyre?

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Fox writes:

Quote:

Example: on what principle of constitutional interpretation did the court declare execution of minors tried and ocnvicted as adults to be unconstitutional?

The constitution states - "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

We can disagree as to what "cruel and unusual" means but the constitution says that the courts get to decide. No where does the constitution require that your or my opinion be the standard.

Quote:

In the examples cited thus far, it is easy to see how many think the courts are assuming powers assigned to the legislative and executive branches before such issues are ever addressed by the legislative and executive branches

It may be an easy statement to make but it is NOT an easy one to prove. Lay out your logical argument in the form of facts that lead to your conclusion. Show how the court is violating the constitution by using the constitution itself and Fed papers. Or show where my statements in my previous post are false by reposting and saying if you agree or disagree. Then we can discuss each of them using the source material.

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parados, to my untutored eye it looks good. I can understand it. Jeepers I know far more about the Constitution and its application than I did before I began reading this thread.

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Well I have appointments in the real world this morning and will need to leave the building for awhile. But I shall return.

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Quote:

it is not the prerogative of the court to write opinion based on what they think the Constiution should have inferred rather than on what the law actually is.

If this is the case then we have no need for courts at all. If laws are so clear that they can be interpreted by lay persons without any dispute then courts have no purpose.

Courts are there BECAUSE we disagree about the meaning. Just because you or I don't like the court ruling doesn't suddenly mean the court wasn't doing precisely what it is designed to do.

Can courts make bad decisions? yes.
Can courts sometimes violate their job description? yes.
Does that mean that they do it most of the time? no.

Does that mean they did it in this case? I don't see any evidence from you to show that they did, only a disagreement with their ruling.

The purpose here is to support our statements with as many facts as possible. I disagree with some of your interpretation of Fed 78 Fox and look forward to actually discussing the meanings there.

My personal form of logic is to make statements that I think are true. You can agree with them, think they are false or think they are not defined well enough to be true or false. Through this process we can define down our area of disagreement and attempt to come to a consensus of some form. We may never agree on every little detail but I hope it allows us to come to some form of overall agreement.

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good wrote:

Quote:

Jeepers I know far more about the Constitution and its application than I did before I began reading this thread.

That was part of my intention on starting this thread. That we can all learn from each other and from our research to support our opinions. Thomas and I disagreed earlier before Deb stepped in and pointed out a crucial piece of information we both had missed.

The hard part for all of us will be to keep this a rational discussion and not an emotional one that turns into partisan attacks. One thing I am finding on my time at A2K is that the concept of logic is often as personal and varied as opinion. I sometimes have to step back and remind myself that I might not be right, even in how logic works, and to give others the benefit of the doubt. I pledged that would be one of my goals here. If I step over the line, someone feel free to point it out.

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There has to be a bit of rough play parados, it's the nature of the game, but I agree with no personal fouls. If there's a flag on the play and the bloke in stripes is pointing at me I'll wear it. But debate is, after all, a contact sport :wink:

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Foxfyre

Foxfyre wrote:

Parados quotes

Example: on what principle of constitutional interpretation did the court declare execution of minors tried and ocnvicted as adults to be unconstitutional?

Foxfyre, the case you asked for information on is Roper vs Simmons. You can read it here:

http://a257.g.akamaitech.net/7/257/2422/01mar20051300/www.supremecourtus.gov/opinions/04pdf/03-633.pdf

BBB

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Yes, I've read the case BBB and still have the same questions. Judges are not gods to me and are therefore quite fallible. I have to have a better reason to accept something other than the proverbial "because I said so."

And while I wholeheartedly agree with Parados's wish to keep this as a rational discussion, he has already assumed that because I asked questions, I am in disagreement with the court. I don't believe I have said as such. I have only said that I wish the court to interpret the laws that exist and I do see a very real danger in the courts interpreting and therefore creating laws that did not yet exist. I have already admitted I am no legal eagle and I am far less interested in HOW the courts express opinions than in their rationale for doing so and how their action mesh's with the spirit and intent of the Constiution.

And if we lay people are not capable of watching and considering and drawing conclusions from what the courts do, then there is no reason at all to even discuss it is there? Smile

It seems logical to me that if minors are too immature to be subject to the severist penalty of law, they would be too immature to be tried as adult at all. So I cannot see that particular Supreme Court ruling as anything other than judicial activism. I have not said whether or not I agree with it as that is beside the point, the point being whether judicial activism is the appropriate function of the court.

Of course to me, the more sensible solution is to appoint judges who see it like I see it. At least a couple of the Supremes on the Court at this time do. I'm not certain about the rest.

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Fox wrote:

Quote:

And while I wholeheartedly agree with Parados's wish to keep this as a rational discussion, he has already assumed that because I asked questions, I am in disagreement with the court. I don't believe I have said as such.

I guess I assumed that because you haven't given any objective reason for your opinion.

Please tell us what the standard is then since I was mistaken. Certainly, I have discussed earlier in this thread with wandel about how no one has presented such a standard that could then be applied in objective fashion.

Quote:

It seems logical to me that if minors are too immature to be subject to the severist penalty of law, they would be too immature to be tried as adult at all. So I cannot see that particular Supreme Court ruling as anything other than judicial activism. I have not said whether or not I agree with it as that is beside the point, the point being whether judicial activism is the appropriate function of the court.

Are you advocating that parents can't punish children at all? Just because we don't let parents kill their kids for misbehaving in no way means that parents can't punish them. Neither does eliminating the death penalty mean that courts can't punish kids. Because they are kids the object is to TEACH them how to behave. Parents do that in their punishment and courts should do the same. We are attempting to make them be more mature by learning there is a consequence. Death kind of eliminates any learning experience for an immature minor.

DEFINE JUDICIAL ACTIVISM.. I want to know what it is. Please.

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fox wrote;

Quote:

Of course to me, the more sensible solution is to appoint judges who see it like I see it. At least a couple of the Supremes on the Court at this time do. I'm not certain about the rest.

Explain this statement in light of your earlier statement that agreeing or disagreeing has nothing to do with your definition of judicial activism.

How am I to take your view when you say judges are activist because they don't "see it like I see it"?

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Maybe foxfyre should explain what she considers judicial activism. However, I was always under the impression that making law is part of what courts have always done. Separation of powers suggest that making law belongs to the legislative branch. Isn't there some overlap among the three branches? Even the executive branch sometimes makes law (executive orders). Maybe Debra Law can clarify this overlap.

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Foxfyre wrote:

For instance, the Supreme Court has not ruled the death penalty in any state but recently ruled that executiion of minors tried and convicted as adults is unconstitutional. The only rationale I can see for this decision is their personal convictions about this matter along with their observation that we are virtually the only industrialized country that was implementing such a practice. The Court did not rule it unconstitutional to try and convict minors as adults, however.

Regardless of one's personal convictions about this, what constitutional principle ould possibly support the doubnle standard?

I'm not sure I understand the "double standard?" Is it this: Either we treat juvenile offenders like adults or we don't? But once we decide to treat them like adults, they ought to be subject to ALL adult penalties, including the death penalty?

According to the Death Penalty Information Center, there are twelve (12)states and the District of Columbia that do NOT have the death penalty.

In the remaining 38 states, the death penalty in two of those states (New York and Kansas) was declared unconstitutional in 2004.

In the remaining 36 states, only nineteen (19) states allowed juveniles to be put to death. Here is a list of those 19 states (including the Age of Eligibility for the death penalty and Number of Juvenile Executions since 1976):

1. Alabama: 16 years old and 14 executions
2. Arizona: 16 years old and 6 executions
3. Arkansas: 16 years old and NO executions
4. Delaware: 16 years old and NO executions
5. Florida: 17 years old and 3 executions
6. Georgia: 17 years old and 2 executions
7. Idaho: 16 years old and NO executions
8. Kentucky: 16 years old and NO executions
9. Louisiana: 16 years old and 5 executions
10. Mississippi: 16 years old and 5 executions
11. Nevada: 16 years old and 1 execution
12. New Hampshire: 17 years old and NO executions
13. North Carolina: 17 years old and 5 executions
14. Oklahoma: 16 years old and NO executions
15. Pennsylvania: 16 years old and 2 executions
16. South Carolina: 16 years old and 5 executions
17. Texas: 17 years old and 29 executions
18. Utah: 16 years old and NO executions
19. Virginia: 16 years old and 1 execution

Information gleaned from: http://www.deathpenaltyinfo.org/state/
http://www.deathpenaltyinfo.org/article.php?did=205&scid=27

Therefore, out of 50 states and the District of Columbia, only 19 states had laws that made juveniles eligible for the death penalty.

However, when looking at the statistics from those 19 states, seven (7) of those states have never applied the death penalty to juveniles.

That leaves only 12 states in the entire nation that have actually put juveniles to death since the death penalty was restored in 1976.

And then, when you look at the statistics from those 12 states, the death penalty was used very sparingly against juvenile offenders. The States of Alabama and Texas have executed the most juveniles with Alabama executing 14 juveniles and Texas executing 29 juveniles.

See Roper v. Simmons, No. 03-633

Quote:

Majority Opinion

By a vote of 5-4, the U.S. Supreme Court on March 1, 2005 held that the Eighth and Fourteenth Amendments forbid the execution of offenders who were under the age of 18 when their crimes were committed.

Justice Kennedy, writing for the majority (Kennedy, Breyer, Ginsburg, Souter, and Stevens, JJ.) stated:

When a juvenile offender commits a heinous crime, the State can exact forfeiture of some of the most basic liberties, but the State cannot extinguish his life and his potential to attain a mature understanding of his own humanity.

The Court reaffirmed the necessity of referring to “the evolving standards of decency that mark the progress of a maturing society” to determine which punishments are so disproportionate as to be cruel and unusual. The Court reasoned that the rejection of the juvenile death penalty in the majority of states, the infrequent use of the punishment even where it remains on the books, and the consistent trend toward abolition of the juvenile death penalty demonstrated a national consensus against the practice. The Court determined that today our society views juveniles as categorically less culpable than the average criminal.

http://www.deathpenaltyinfo.org/article.php?scid=38&did=885

The Supreme Court's decision in Roper v. Simmons was NOT based upon the personal convictions of the justices themselves. It is clear that the United States Supreme Court looked at all the death penalty statistics from every state and the union and observed that it is rare for juveniles to be sentenced to death even in the states that allow the penalty. This represents that the people of this nation, as a whole, find it extremely repugnant to sentence juveniles to the death penalty.

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Re my definition of judicial activism: making a law where none existed before when there is no clear constitutional basis to do so; overriding and thus changing existing laws of long standing when it is a real stretch to justify that via the U.S. consitution.

Re judges agreeing with me: I mean agreeing with me on what is judicial activism.

I am intentionally not taking any 'sides' on how I think the judges should have ruled in any of these cases as I do not wish to debate the cases themselves here. I am not the last word on that or in anything else, of course; I am simply stating my understanding and a preference or two.

And Debra, are you saying that when it is all said and done, it is majority rule as to what the judges consider should be their rule of law? Using your rationale that all but very few found execution of minors repugnant justified the rationale for the decision would make it look that way. And that begs the question of why then would it be necessary to force the very few to comply with the many? That seems a very dangerous and slippery slope to start down.

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The Courts, the Constitution and the Federalist papers

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